Ewb19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 853

FEDERAL CIRCUIT COURT OF AUSTRALIA

EWB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 853

File number:

ADG 502 of 2019

Judgment of:

JUDGE YOUNG

Date of judgment:

19 April 2021

Catchwords:

MIGRATION – application for extension of time to seek judicial review of a decision of the Administrative Appeals Tribunal to refuse to grant a Protection (subclass 866) visa – where the review application was lodged 2 years and 4 months out of time.

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to refuse to grant a Protection (subclass 866) visa – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth) s 36(2)(a)

Number of paragraphs:

17

Date of hearing:

19 April 2021

Place:

Darwin

The Applicant:

Appearing on his own behalf

Solicitor for the First Respondent:

Ms Ashby of Australian Government Solicitor

ORDERS

ADG 502 of 2019

BETWEEN:

EWB19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	19 APRIL 2021

THE COURT ORDERS THAT:

1.The application filed on 9 December 2019 be dismissed.

2.The Applicant pay the costs of the First Respondent in the fixed sum of $5,400.

3.Where the name of the Applicant was mentioned during the course of the proceedings on 19 April 2021 the pseudonym “EWB19” is to be substituted on the transcript and the Applicant is otherwise to be referred to as “EWB19”.

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 7 July 2017.  The applicant applied to this Court seeking judicial review on 19 December 2019. That is some two years and five months after the decision of the Tribunal. This means that the application was approximately two years and four months out of time as there is a time limit of 35 days to make an application for review.  The application sought both an extension of time and judicial review. 

2. I will summarise the grounds of the application. First, the applicant asserts he had difficulty understanding the proceeding and could not clearly understand the English spoken because his English was not good.  Secondly, he says that he was asked many questions by the Tribunal member (the Member) and he was prevented from reading from a paper that he wrote in English to “defend” himself. He said that constituted an injustice.  Thirdly, he complained that the Tribunal said that he did not provide enough evidence or documentation in support of the claim and that he was not a “high-profile person” who would be entitled to the protection obligation. He also stated that he was unable to afford a lawyer at the hearing. It should be noted that it is not in dispute that the applicant was assisted by an Indonesian interpreter during the hearing before the Member. 

3. As at the hearing today the applicant had not made any written submissions in conformity with Court directions, I therefore asked the applicant if he was able to explain to me what he was unable to say to the Member or what he was prevented from saying to the Member due to the Member’s refusal to permit him to read from prepared notes.  I also asked the applicant what he had intended to say and what he wished to say to the Member. The applicant was unable to explain to me, in any way that I could understand, what he was prevented from saying to the Member or what information he was prevented from conveying to the Member. 

4. The applicant made submissions to me in English today.  His English is clearly not fluent but it is, what I would call, basic English.  An Indonesian interpreter sat beside him during his submissions.  I explained to the applicant that he could speak in English or Indonesian as he might choose. He chose to make his submissions in English. At one point he sought assistance or clarification from the interpreter about what was meant by “written submissions”.  This is not surprising considering it is a legalistic phrase. I would not necessarily expect him to understand it. 

5. While I assess the applicant’s English as basic it was functional and given that an interpreter was present before the Member and an interpreter was present during the hearing today, I am satisfied that the applicant’s choice to proceed in English was not an unreasonable one. Any disadvantage he might suffer from lack of fluency was likely to be remedied by the fact that an interpreter was accessible in both cases should he have needed it. I am not satisfied that he has suffered any disadvantage by reason of his lack of English fluency. 

6. The Member interpreted the applicant’s claims to follow from his Chinese ethnicity, his religion of Christianity and his claim that on 1 May 2014 he attended a Labour Day rally in Jakarta along with approximately 300,000 people.  The applicant claimed that at that rally there were members of the Gerindra party which was the party of a politician and presidential aspirant Prabowo Subianto (Prabowo) who ran for election in 2019 against President Joko Widodo and was defeated. 

7. The applicant said, and I consider it is undisputed, that Prabowo, who was the son-in-law of President Suharto, had a bad human rights record. The applicant further stated Prabowo was thought to be responsible for the murder of numerous people during the fall of Suharto in 1998-1999.  The Member considered those claims in some detail. 

8. Dealing with the applicant’s Chinese ethnicity, the Member was also aware, from the country information, that ethnic Chinese people have suffered a history of discrimination of various kinds. They are a minority population.  The Member stated that the percentage of Chinese people in the Indonesian population was under two per cent of the Indonesian population. Further, ethnic Chinese people were historically considered to have access to those in political power and to be economically more advanced than the rest of the population. This resulted in resentment by the majority of the Indonesian population against them.

9. The Member, on the basis of country information, considered that the conditions for ethnic Chinese people had improved slightly in more recent years. Particularly, the Member considered the conditions had improved during the democratisation of Indonesia and that any formal discrimination had been abolished in Indonesia.  The applicant referred to a history of bullying and discrimination in his childhood. However, he also gave a history of studying at university and obtaining a degree in Business Administration. He had sought and obtained employment in Indonesia.

10. He was not able to point to any particular discrimination that had affected him in the earning of his livelihood, obtaining of an education or in any other respect. The Member, in those circumstances, was not satisfied that the applicant was at anything other than a remote risk of persecution on that ground.  In relation to religion, the Member considered the rise of religious intolerance in Indonesia in recent years. Particular reference was made to the Islamic Defenders Front (or Front Pembela Islam), which is an extremist organisation professing to seek the creation of an Islamic state in Indonesia and responsible for attacking Christian churches and the expression of other religions or secularism.

11. The Member, essentially, concluded that the overwhelming majority of Indonesian Muslims adhered to a tolerant version of that religion and the overwhelming majority did not adopt the views of that extremist group.  The Member also pointed to efforts that the Indonesian state had made towards suppressing some extremist religious organisations in Indonesia.  The Member concluded that the applicant was not able to point to any persecution he had suffered as a result of not being a Muslim or due to his Christian faith. He said that he was a member of a Protestant church and had attended church in Indonesia each Sunday. The applicant was not able to point to any experience of persecution he had personally suffered.

12. In relation to the International Labour Day rally, on 1 May 2014, where members of the Gerindra party were present, the Member considered that the fear the applicant professed to have of Prabowo obtaining power was speculative. (Prabowo was not successful in 2019).  The Member pointed out that, again, the applicant was not able to point to any threats of adverse conduct directed toward him by the members of the Gerindra party arising out of that rally. 

13. I should point out that at paragraph 35 of the Member’s decision there is a reference to the applicant not being a member of any political party in Malaysia.  That is clearly a slip and appears in the middle of a paragraph discussing the applicant’s political involvement in Indonesia. Further, the rest of the reasons raise no doubt that the Member was aware that the situation in Indonesia was being discussed.  The error is a slip.  The reason for the error is unclear, however, I am satisfied that it does not indicate that the Member was mistaken about the nature of the applicant’s claims about the situation in Indonesia.

14. Considering each of those claims individually and cumulatively the Member concluded that any risk of harm to the applicant was remote. The Member was not satisfied that any protection obligation arose under section 36(2)(a) of the Migration Act1958 (Cth). The Member also considered whether complementary protection obligations were owed to the applicant arising out of the same grounds. The Member reached the same conclusion that there was no serious risk of harm to the applicant.

15. In submissions, the applicant did say that ethnic Chinese people are unable to obtain employment with the Indonesian Government.  I assume he is referring to the National Government.  I do not see any indication that that was raised before the member and I am not aware of any finding about that by the Member.  The Member concluded that the applicant had been able to obtain employment in Indonesia and had not suffered any period of unemployment.

16. The applicant referred to his submission that ethnic Chinese people cannot obtain employment with the National Government of Indonesia. As I understood his submissions, he stated that that was an example of serious harm. He submitted it has caused significant economic hardship threatening his capacity to subsist.  It appears to me that that submission is inconsistent with the applicant’s actual experience in Indonesia or in his ability to obtain employment, which was referred to by the Member.  I am not satisfied that there was a submission of that kind made to the Member which was overlooked or ignored. 

17. Having regard to those matters, I am not satisfied that there is any indication of jurisdictional error. The application is not made out and will be dismissed. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       28 April 2021